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Considerations for Drafting Effective and Legally Enforceable Social Media Policies

Considerations for Drafting Effective and Legally Enforceable Social Media Policies

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    Social media policies_powerpoint_for_labor_and_workforce_development_in_review Social media policies_powerpoint_for_labor_and_workforce_development_in_review Presentation Transcript

    • Best Practices for Drafting Social Media Policies February 1, 2012 Presented by Christina A. Stoneburner, Esq.Best Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 1
    • Growth of Social NetworkingLinkedin: More than 135 million usersMy Space: More than 150 million usersTwitter: More than 200 million active usersFacebook: More than 500 million usersBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 2
    • What Should be Covered in Your Social Media Policy? Hiring and recruiting practices Electronic systems usages policies Harassment of co-workers Disparagement of the Company and Customers Confidentiality Agreements Who Owns the Social Media AccountBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 3
    • Use of Social Networking Sites During Recruiting and InterviewingPerceived Benefits of CheckingApplicants’ Social Networking Sites:Weed out undesirable applicantsVerify employment history and/or referencesObtain examples of applicant’s communicationskills, creativity, etc.Best Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 4
    • Risks of Checking Applicants’ Social Networking Sites Mistaken identity Create exposure for violation of state and federal discrimination claims Eliminate defenses to such claims May be considered a background checkBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 5
    • Recommendations If Want To Check Applicants’ Social Networking Profiles Be consistent Make job offers conditional Make a recordBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 6
    • Hazards/Liability Issues From Employee Posts: Suits against employer and employee Trend toward finding employer liability if employee accessed/sent information using company computer, conduct was job- related, and/or occurred during working hours. Employers who block access to a particular social networking site at work may be avoiding liability in some instances.Best Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 7
    • Tort claims Defamation of the Company, other employees, customers, etc. Harassment/discrimination claims Negligence against employer Infliction of emotional distress Best Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 8
    • Privacy torts Invasion of privacy False Light Publicity Public Disclosure Of Private FactsBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 9
    • Drafting an Effective and Enforceable Social Media Policy: Goals Assess the benefits of social media, and incorporate it into the policy Include reasonable restrictions designed to: - prevent disclosure of confidential company information and trade secrets, - prevent legal claims against employee and employer, - reinforce the organization’s other policies/codes of conduct, - control productivity, and - protect the image of company Assess how the policy will be enforced: - Actively vs. passivelyBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 10
    • Drafting an Enforceable Policy: State Laws Anti-discrimination Statutes Workers’ Compensation Anti-Retaliation Provisions State whistleblower laws, i.e. New Jersey Conscientious Employee Protection Act. Off duty laws:  NY Labor Law §201-d(1)(b) prohibits discrimination against employees based on engaging in “legal recreational” activities off work time.Best Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 11
    • Drafting an Enforceable Policy: Federal Laws on Electronic Privacy Stored Communications Act - Exception for “voluntary” disclosure Electronic Communications Privacy Act: applies to interception of information as it is being transmitted, not stored information Computer Fraud and Abuse Act - Applicable to federal computers and certain financial institutions or computer affecting interstate commerce - Makes it unlawful to access without authorization a protected computer - Patriot Act and Identity Theft Enforcement Act increased penalties for violating Act:  10 years for first offense and 20 years for second offense  Only general, not specific, intent to cause damage requiredBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 12
    • Drafting an Enforceable Policy: Federal Laws Occupational Safety and Health Act Title VII, ADA, ADEA anti-retaliation provisions Sarbanes Oxley (publicly-traded employers) National Labor Relations ActBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 13
    • Drafting a Social Media Policy: Policy Considerations: the NLRAThis is an issue for unionized and non-unionizedemployers.Policies often: Prohibit Employees from disparaging the company, itscompetitors or its employees Provide that violations can lead to disciplinary actionCaution Must Be Exercised Because of: Employee’s Section 7rights under the NLRABest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 14
    • Drafting a Social Media Policy: Policy Considerations: the NLRASection 7 protects the rights of non-unionized employees to discuss working conditionsSection 7 provides that employees shall have the right to:  Self organize,  Form, join or assist labor organizations,  Bargain collectively;  Engage in other concerted activities for collective bargaining or other mutual aid or protection; and  Refrain from any or all of the aboveBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 15
    • Recent NLRB Decisions Where Found to Be Unlawful - Non-profit Discharges 5 Employees for Facebook postings  Employee posted on Facebook that there were complaints of improper service filed by a co- worker  Employee requested other co-workers to help give evidence to Executive Director that complaints were not true  Employer had terminated employees for cyber- bullying other employeeBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 16
    • NLRB Decisions (cont.) - Ambulance service’s policy violated NLRA  Employee was asked to write an incident report concerning a customer complaint. Employee was denied union representative.  Employee posted on Facebook that supervisor was “scumbag” and other employees joined in  Challenged policy as being overbroad because it prohibited photos of employees without company permission and prohibited “rude” behavior  Stressed that there was no language indicating it was not meant to affect Section 7 activityBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 17
    • NLRB Decisions (cont.) - Union violated Section 8(b)(1)(A) by posting interrogation video on YouTube and Facebook  Union employees posed as inspectors and asked employees about illegal workers  Union employees demanded information about legal status and requested to see proof  Board held union had interfered with employee’s performance of non-union work  Threats to call immigration were unlawful coercionBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 18
    • NLRB Decisions (cont.) Employers Policies Found to be Unlawful - 2 Employers’ policies which prohibited speaking badly about employer were too broad  One policy prohibited “embarrassment, harassment, or defamation of the employer or would damage good will.  Another policy prohibited “inappropriate” comments  In both cases, focused on fact that terms could include lawful union activityBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 19
    • NLRB Decisions (cont.) - Supermarket chain’s policy found to be overbroad  Board found provision barring employees from pressuring another employee to “friend” them ok  Board took issue with policies that prohibited disclosure of “personal information” of other employees without their consent  Board also took issue with policy regarding no use of logos or photographs of store because may prohibit picture of picketing activityBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 20
    • NLRB Decisions (cont.) Where Termination found to be Not Unlawful - Bar who terminated employee for complaining about tipping policy  Employee posted comments about work to a relative complaining about tip policy and calling customers “rednecks”  Even though about a term or condition of employment, not concerted activity  No employee joined in on the comment and no employee discussion about the tip policyBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 21
    • NLRB Decisions (cont.) - Non-profit employee who made comments about mentally disabled clients not protected  Employee had conversation with friends about working in mental institution  Co-worker reported the incident to employer but did not participate in conversation  Found not to be concerted activity because did not discuss issue with co-workers  Did not address confidentiality concerns of employer in disclosing patient informationBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 22
    • NLRB Decisions (cont.) Employer’s Policy Restricting Contact with the Media was lawful - Grocery store chain prohibited employees from responding to media inquiries and employees were required to direct all inquiries to Public Affairs office - Employees were also prohibited from taking pictures in store or parking lot without permission - Interpreted the policy on cameras to prevent news cameras not individual camerasBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 23
    • Other Concerns: Protection of Company Trade Secrets and Proprietary Information Consider revising confidentiality agreements and policies Address Non-compete agreements Who owns the social media account? - PhoneDog v. KravitzBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 24
    • Policy Drafting Checklist Assess if employees should get permission from someone in the company before using these sites. Do not limit employees from talking about salaries or terms of conditions of employment. No expectation of privacy.Best Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 25
    • Policy Drafting Checklist Tell employees what content is prohibited Spell out consequences for violation of policyBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 26
    • Contact Information Christina A. Stoneburner, Esq. 973-994-7551 cstoneburner@foxrothschild.comBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 27